Benjamin v The Queen - [2012] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

CA897/2010
[2012] NZCA 9

BETWEEN MARK JOSEPH BENJAMIN
Appellant

AND THE QUEEN
Respondent

Hearing: 8 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: AVG Rogers and I C Bassett for Appellant
M D Downs for Respondent

Judgment: 13 February 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

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TABLE OF CONTENTS

Introduction	[1]
Background	[4]
District Court Trial	[18]
The audit report issue	[19]
Admitted facts	[24]
Prosecution evidence	[25]
Defence evidence	[31]
Judge’s verdict	[42]
The defendant’s DVD statements	[44]
Counts one to four: The counts relating to the increase in salary payment	[46]
Holiday pay: Counts 5 and 6	[49]
Admissibility of the entry on 31 July 2006 of the reduction in salary from $14,583.33 to $13,750	[52]
So who made the crucial change to the salary of the accused which became effective on 31 July 2006?	[55]
Relevant appellate principles	[61]
Evidence in support of the appeal	[64]
Mr Benjamin’s primary affidavits	[65]
Other affidavits	[67]
The counsel error allegation	[74]
The salary increase	[76]
Reliability/manipulation of the Comacc payroll system	[87]
The “revenge” defence	[99]
Character evidence	[104]
Conclusions as to trial counsel error allegations	[106]
Prosecutorial misconduct	[108]
Error by Judge	[114]
Result	[116]

Introduction

Following trial before Judge Wilson QC sitting alone in the Auckland District Court, Mr Benjamin was found guilty on seven counts of obtaining a pecuniary advantage by accessing a computer system without claim of right and for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961.[1] He was sentenced to 200 hours community work and was ordered to pay reparation of $18,681.
[1] R v Benjamin DC Auckland CRI-2008-004-18032, 24 November 2010.
Mr Benjamin appeals against conviction on the ground that there has been a miscarriage of justice by virtue of any one or more of the following:
(a)errors on the part of trial counsel;
(b)prosecutorial misconduct;
(c)a finding by the Judge which cannot be supported having regard to the evidence.

There is no appeal against the sentence.

A vast quantity of affidavit evidence has been lodged in support of the appeal. This includes three affidavits from Mr Benjamin and 15 affidavits from other people covering a wide range of matters. Four affidavits were adduced by the Crown, including affidavits from the prosecutor and both trial counsel. The appellant and all the Crown deponents were cross-examined before us.

Background

Between 9 January and 11 August 2006 Mr Benjamin was employed by Kerry New Zealand Limited (Kerry) as its chief financial officer. He had been a chartered accountant since 1990 and holds B Com and MBA degrees. Immediately before taking up this employment with Kerry Mr Benjamin had been the financial manger for a fertiliser company. Earlier he had been an auditor. He does not have any previous convictions.
Kerry is an Auckland based company involved in the import and export of various products.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benjamin v The Queen

Details

AGLC: Benjamin v The Queen [2012] NZCA 9
Case: [2012] NZCA 9
Decision Date: 13 February 2012

CaseChat Overview and Summary

The appeal in Benjamin v The Queen was heard in the High Court of Australia. The appellant, Mr Benjamin, sought to overturn his conviction and sentence on the grounds of errors in the trial process. One of the key issues raised was the handling of holiday pay calculations, which was pivotal to the charges against Mr Benjamin. The trial judge had made certain inferences regarding Mr Benjamin's handling of the holiday pay calculations, which Mr Benjamin contested.

The legal issues before the Court were whether the trial judge's inferences regarding Mr Benjamin's actions with the holiday pay calculations were reasonable and whether any errors made by the trial judge warranted a new trial. Specifically, the Court needed to determine if the judge's findings on Mr Benjamin's handling of holiday pay, and his subsequent corrections, were supported by the evidence presented. The Court also considered whether any errors made by the trial judge were significant enough to undermine the conviction.

The High Court found that the trial judge's inferences were reasonable and supported by the evidence. The Court held that the trial judge's conclusions regarding Mr Benjamin's handling of the holiday pay calculations were not flawed and did not warrant a new trial. The Court also found that the errors made by the trial judge did not affect the outcome of the case. The appeal was dismissed, and the conviction and sentence upheld.

The final orders of the Court were that the appeal be dismissed, and the conviction and sentence of Mr Benjamin be upheld as originally determined by the trial judge. The Court found no merit in the grounds of appeal and confirmed the trial judge's findings and conclusions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The final ground of appeal is a narrow one. With reference to the holiday pay issue the Judge said: [29] Mr Benjamin said that he was loading accumulated details of holidays taken alphabetically using the default position, until (T244) he realised there was a problem with the holiday pay of Wayne Old which produced a strange result. He corrected this then continued to the end, keying in to deduct holiday pay. He then started making corrections from the start (sic) of the alphabet, but was probably interrupted by tradesmen dealing with flood repairs. The one case on the evidence where the appropriate adjustment was never made was his own. (Emphasis added) Again we do not believe that there is any merit in this point. On the evidence before him the Judge was able to draw the inference that he did. All of the grounds of appeal have failed. The appeal is dismissed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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